MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            22 July 2003      
	DOCKET NUMBER:   AR2003084966

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Thomas D. Howard		Member	
	Mr. Thomas Lanyi		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That her physical evaluation board (PEB) proceedings be invalidated and she be reconsidered by a new PEB.

APPLICANT STATES:  That she was improperly discharged for disability through an act of malfeasance.  Title 10, U. S. Code, section 1219 states that a member may not be required to sign a statement relating to the origin, incurrence, or aggravation of a disease or injury that the member has and that any such statement against the member's interests, signed by a member, is invalid.  The PEB requested she provide a Standard Form 93 (Report of Medical History), upon which the PEB relied in making its determination, in violation of section 1219.  

EVIDENCE OF RECORD:  The applicant's military records show:

She enlisted in the Regular Army on 5 August 1981.  She was promoted to Staff Sergeant, E-6 on 1 April 1994 in military occupational specialty 31F (Mobile Subscriber Equipment Network Switching System Operator).

In March 1996, the applicant was referred for a medical evaluation board (MEB) for a primary diagnosis of chronic lower back pain and multiple other muscoloskeletal problems.  

In a Standard Form 93 dated 1 March 1996 prepared for the MEB, the applicant detailed almost 30 medical conditions she suffered.

In a 20 March 1996 memorandum for the PEB, the applicant's commander indicated that her duty performance had been hindered by the physical limitations of her profile.  

On 17 April 1996, the applicant was given a permanent physical profile for severe back pain, wrist pain, and neck pain with assignment limitations of no deployment, no Army physical training test, physical training at own pace, and no marching.

On 20 August 1996, the MEB referred her to a PEB for 11 diagnosed conditions incurred while entitled to basic pay (chronic upper and lower back pain; chronic musculoskeletal neck pain; chronic bilateral knee pain; primary asymptomatic hypothyroidism; mild hemorrhoids; symptomatic irritable bowel syndrome with documented pancolitis; dislocated right thumb in 1986; recurrent sinusitis and seasonal allergies; multiple muscular and soft tissue contusions and resulting myalgias; and nephrolithiasis (kidney stones).  The MEB noted one diagnosed condition (history of gingivitis) as existing prior to service.  

On 20 September 1996, the applicant noncuncurred with the MEB's findings and recommendations.  In her appeal, she noted, among other things, that her hemorrhoids were severe, not mild; frostbite incurred while stationed in Alaska made her fingertips very sensitive to cold; she had no problems with her gums when she enlisted; she had surgery for carpal tunnel syndrome but she still had problems in both hands; she was undergoing speech therapy; and that her main problem at that time was pain in her stomach, causing her to vomit.

On 26 September 1996, after considering the applicant's appeal, the MEB's original findings and recommendations were confirmed.  

On 9 October 1996, an informal PEB found the applicant to be unfit for duty due to chronic upper and lower back pain, chronic musculoskeletal neck pain, and chronic bilateral knee pain under Veterans Affairs Schedule of Rating Disabilities (VASRD) code 5003, with a 20 percent disability rating. 

On 31 October 1996 the applicant nonconcurred in the PEB's findings and recommendation.  She apparently changed her decision and on 20 November 1996 concurred in the findings and recommendation and waived a formal hearing.  

On 24 March 1997, the applicant was discharged for physical disability, with severance pay, after completing 15 years, 7 months, and 2 days of creditable active service.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Appendix B, paragraph B-24, states that often a soldier will be found unfit for any variety of diagnosed conditions which are rated essentially for pain.  Inasmuch as there are no objective medical laboratory testing procedures to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded only on the basis of pain.  Rating by analogy to degenerative arthritis (VASRD code 5003) as an exception to analogous rating policies may be assigned in unusual cases with a 20 percent ceiling, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value.

Title 10, U. S. Code, section 1219 states, "A member of an armed force may not be required to sign a statement relating to the origin, incurrence, or aggravation of a disease or injury that he has.  Any such statement against his interests, signed by a member, is invalid."

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant has failed to provide evidence to show that the information she entered on the Standard Form 93 was used against her interests.  The information was used to aid in processing her through the physical disability system.  

3.  An example of where section 1219 would apply would be a member being processed through the physical disability system for an HIV-related condition.  If the member were required to make a statement as to where the member might have acquired the infection, and the member stated it was through homosexual conduct, then the use of the statement to initiate disciplinary action against the member for homosexual conduct would be prohibited.

4.  The applicant provides no evidence to show how the information was used contrary to law and to her detriment.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jns___  __tdh___  __tl____      DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2003084966	
SUFFIX		
RECON		
DATE BOARDED	20030722	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.